Can David Cole Save The ACLU?

Like Walter Olson, I had been highly critical of the “new” ACLU which had forsaken the defense of civil liberties for the appeal to social justice. So when Wally posted that the ACLU had filed an amicus brief in support of the NRA after being targeted for destruction by Governor Andrew Cuomo, I was shocked.

After the Nazis and the KKK, the National Rifle Association is perhaps the group most hated by the ACLU’s fan base. And having reaped monumental financial rewards from tapping into the emotions of the newly woke, the ACLU was not only fabulously wealthy but empowered to limit its largesse to only those issues and parties that were worthy of its patron’s tears.

Yet, there it was, the ACLU coming out in support of its mortal enemy because Cuomo was using his regulatory apparatus to silence an organization because he hated its message. This was so . . . principled. Following Wally, I was inclined to applaud the ACLU and, maybe, concede that it wasn’t dead yet. David Cole, the ACLU’s legal director, remembered why it was there and would not compromise civil rights for the whims of donors.

And then Mark Joseph Stern at Slate reminded me that Cole is just one person. An important person at the ACLU, but alone.

“If the state can penalize gun promotion advocacy groups by threatening their service providers,” Cole continued, “it can do the same to other groups”—including Black Lives Matter. Thus, the ACLU had decided to urge the courts to “carefully scrutinize” whether Cuomo has tried to unconstitutionally punish the NRA based on “hostility to [its] viewpoint.”

Cole explained, in a staff email, why he chose to help the enemy. That he felt compelled to explain at all is remarkable. For the ACLU, this was akin to sending out an email asserting it was Wednesday, and relying upon an analogy to justify it. The action was once at the core of ACLU’s mission and its staff and supporters would have taken perverse pride in defending positions which it found repugnant. No more.

Within hours, the organizationwide listserv had lit up. Staffers at both the national office and state affiliates wrote back to register their frustration with Cole’s decision. The ACLU of New York sent out a statement on Monday explaining why it had declined to support the national office’s position.

The argument against the ACLU supporting the NRA was threefold, first that Cuomo’s attack on the NRA wasn’t really a First Amendment issue, as there were legitimate questions about regulating its insurance product, Carry Guard. This was a nonsensical argument, as Cuomo was quite clear that he was using insurance and banking regulations as a wedge to take down the hated NRA.

The second argument was that the NRA had sufficient resources, and the ACLU should save its “limited resources” for the more deserving. This, too, was nonsensical, as this was merely an amicus brief, not representation of the NRA, and the ACLU had tons of cash in the bank. This was no more significant to the ACLU’s cashflow than buying donuts for the staff meeting.

The third argument, however, was the real beef.

A number of staffers made this final point in starker terms, directly criticizing Cole’s analogy between BLM and the NRA. One litigator at a state affiliate wrote to the listserv: “While I do respect the reasons others posit for taking this case on, I don’t respect the continued refusal of privileged decision-makers to recognize how deeply problematic it is to use BLM as a shield for actions that support white supremacy, particularly [from] an organization that enjoys the immense level of privilege we do.”

The use of Black Lives Matter for the analogy might not have been the best choice of analogy, but for the fact that it was a cause dear to the hearts of most staffers. Then again, the need for any analogy at all was like Cole using small words to explain principle to children. And the reaction demonstrated that his words weren’t small enough.

Another attorney at a state affiliate also argued that BLM was being used as a “shield” and added, “Comparing BLM to the NRA is a false equivalence. Show me one BLM rally/march/protest where a bunch of people of color are allowed to run around with guns hoisted on their hips.” Cole told me he did not mean to “equate the NRA and BLM” but rather to point out that “if a governor can get away with this against a well-resourced group like the NRA, then groups with fewer resources, like BLM, could also be targeted.”

There was nothing about Cole’s analogy to suggest that BLM and the NRA were equivalent, but social justice argumentation isn’t limited to substance when there is a litany of twisted irrelevant and fallacious rationalizations, such as “false equivalence,” to be pulled out and thrown back at one’s adversary. And it’s these warriors for social justice, not civil liberties, who now show up for work at the ACLU.

Most of the ACLU staff members I spoke with echoed Strangio’s belief that by rushing to aid the NRA, the organization had failed to learn the lessons of last year. “The events of Charlottesville prompted a long-overdue internal discussion about how to balance our First Amendment advocacy with our work advancing other constitutional principles, like equal protection, and serving coalitions working with marginalized communities,” one ACLU attorney told me. “In that context, this decision feels like a step backward.” A state affiliate attorney told me that “our choices reflect little understanding of how power and privilege work in the real world.”

David Cole’s my contemporary, steeped in the old school understanding that protecting constitutional rights is its own virtue. The staff shares no such view, instead having been indoctrinated to the “power and privilege” theory which enables one to rationalize why rights are absolute for some and undeserving for others, based upon who can come up with the saddest story of marginalization and victimhood.

“In the real world,” an ACLU litigator wrote on the listserv on Friday, “where our black allies live all the time, the single thing that is most impeding the speech of vulnerable communities is the fear of violence and targeting … every single day, everywhere.” The NRA has contributed to that horrific reality, helping to create an epidemic of gun violence that has disproportionately affected communities of color.

David Cole deserves appreciation for taking a principled stand in support of a constitutional right that needs no analogy to explain. But he’s a dinosaur in the eyes of his staff, who are waiting for, maybe hoping for, his extinction so they can resume their march toward progress of supporting only those whom they feel are worthy of their efforts and relishing the destruction of their enemy’s constitutional rights. Cole may not be the last person at the ACLU to stand for principle, but principle is certainly marginalized at the ACLU.

24 thoughts on “Can David Cole Save The ACLU?

  1. Skink

    It’s really hard for me to get how lawyers, individually or in groups, fail to see the big constitutional picture. It’s in the first week of any constitutional law class: the erosion of constitutional rights for any one is erosion for all. Ignoring it must be purposeful. It can’t be mere stupidity or ignorance.

    And it’s just as hard for me to understand why the purposely narrow view is applied to support a belief system–because it doesn’t support it. Constitutional rights, particularly the 1st Amendment, is what allows the belief system to flourish. Is it really possible to ignore what I see as a simple immutable truth? Is the real purpose to crash the Constitution? I don’t mean just apply it to various groups in different ways because some are more worthy of basic rights, but to just rip the whole thing up and create some other kind of compact that suits the purpose of the day.

    Excuse my ignorance, but I have a very hard time seeing how this way of thinking results in what they think they want.

    1. SHG Post author

      As we are both painfully aware, there have always been a lot of dumb lawyers out there. The difference today is that they are taking control. Whether that’s because there are more of them, or that it’s far easier to be shallow slaves to their insipid feelings than to be thoughtful and adhere to principle is a question.

      There is no expedient to which a man will not resort to avoid the real labour of thinking.
      –Sir Joshua Reynolds

    2. B. McLeod

      Might have to do with PR and money, and money, and money. Not that those count for anything in this land.

  2. Guitardave

    Your upping the ante today, sir….cool song, great artist. Thought I’d take a break on this one….but then my Song Goddess whispered in my ear….for Mr.Cole…

  3. DaveL

    Really, the ACLU shouldn’t be defending the NRA in court, because the ACLU should be doing the NRA’s work defending the 2nd Amendment, while the NRA runs competitions and educational programs.

    On another note, Stern’s links are a complete train wreck. His “epidemic of gun violence” link goes to a WaPo article on low homicide clearance rates – gun homicides are way down nationwide since their peak in the early 90s, but Stern would like to somehow pin the reluctance of black communities to cooperate with the police on the NRA. The link supposedly intended to show the NRA helping white supremacists commit mass murder referred to Dylan Roof, who was able to pass a background check due to bureaucratic incompetence.

    1. SHG Post author

      To appreciate the connections MJS makes, one has to first believe in his one true god. If you don’t, they make no sense at all. But then, he’s preaching to the choir, not trying to persuade anyone of anything.

  4. DC

    From what I’ve seen, Chase Strangio sure loves civil liberties, but only when they comport to his feelz.

    1. SHG Post author

      In fairness to Chase, he’s in this for a very specific, very self-serving purpose, and I don’t begrudge him fighting for his singular cause. He’s not a civil liberties guy, but an “I want what’s mine” guy. He’s not the posterboy for civil liberties at the ACLU.

  5. Tom

    Freedom of speech and association are goods in their own right. The ACLU ought to be championing those rights. Governments don’t try to silence popular ideas, at least ideas popular with the government. Whether it’s defending the right of Nazis to march in Skokie or the NAACP to keep its membership lists confidential from racists, the goals are the same: protect the guarantees in the Bill of Rights.
    I once represented a communist flag burner as an ACLU affiliated law;yer. I disagreed with everything my client stood for but I was defending his right to believe what he wanted and to say what he wanted.
    It was one of the high points of my legal career.

  6. AE

    Comparing the NRA to Black Lives Matter is a poor analogy. The NRA has accomplished something, at least once in its existence.

  7. Morgan O.

    To muscle in on Hunting Guy’s turf: Frederick Douglass

    “A man’s rights rest in three boxes. The ballot-box, the jury-box, and the cartridge-box.”

  8. MonitorsMost

    Glad to see it, but I remain deeply skeptical that the ACLU isn’t dead. The ACLU is now running political attack ads against politicians while trying to double-speak and say they are not attack ads but instead “informing the public.” That’s not the non-partisan civil rights organization which defiantly helped drag us into the 21st century.

    1. SHG Post author

      Kinda wondering how they maintain their non-profit status. The “informing the public” doesn’t pass the sniff test.

      1. MonitorsMost

        Didn’t pass the smell test with the Missouri Ethics Commission either which made the ACLU file financial expenditure reports just like every other political action committee (MEC ID: N121014 if you’re interested).

        Not a tax lawyer, but I think the ACLU is split into a 501(c)(3) and 501(c)(4). Allows the ACLU to retain non-profit status as social welfare organization but donations to the 501(c)(4) would not be tax deductible.

  9. Nemo

    I find this section rather telling, “recognize how deeply problematic it is to use BLM as a shield for actions that support white supremacy, “.

    While one can’t ignore the possibility that this was done as an intentionally subtle jab at the NRA, given the rhetoric of the ACLU of late, I am more inclined to believe it’s something of a Freudian slip, revealing their actual thoughts. YMMV.

    The ACLU has definitely changed, and not for the better.



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